Registered

An open-ended registered fund is subject to the Registered Collective Investment Scheme Rules 2008 and the Prospectus Rules 2008.

The main characteristics of a registered open-ended fund are as follows:

  • The fund must be established with the objective of spreading risk. The criteria for the spread of risk must be specified in the fund’s offering document.
  • The Prospectus Rules 2008 make provision for disclosures in the fund’s offering document.
  • There are provisions for both immediate and periodic notifications to the GFSC regarding changes to the fund, as well as financial and statistical information.
  • Registered funds may not be offered to the public in Guernsey.
  • A Guernsey licensed custodian is required (unless a derogation is available).

In February 2007, the GFSC introduced a new registered fund regime for fast tracking closed-ended funds. This new regime was extended to open-ended funds in December 2008. In conjunction with the 2008 changes, the Guernsey Financial Services Commission (“GFSC”) issued three new sets of rules under POI:

Application Form

Under the registered fund regime, an administrator can apply for a fund to be registered by the GFSC by completing a Form REG, which must be signed by the administrator. The Form REG contains the following requirements and warranties:

  1. confirmation the administrator has performed sufficient due diligence to be satisfied that the promoter and associated parties are fit and proper;
  2. confirmation that effective procedures are in place to ensure that the fund is not offered directly by the issuer to the public within the Bailiwick of Guernsey unless it is offered by someone licensed under the POI Law. Under the regulations, “public” means any person not regulated under any ofGuernsey’s financial services regulatory laws; and
  3. confirmation that the administrator content that the disclosures in the fund’s prospectus and offer document meet the requirements set out in the GFSC’s Prospectus Rules and include the GFSC’s standard legend.

The GFSC attaches great importance to these requirements. It expects the administrator to be in a position to have documentary evidence to support these requirements and be able to produce such evidence immediately at the request of the GFSC. Applicants who cannot substantiate their applications will be excluded from participation in the registered funds self-certification programme.

The following documents should also be lodged at the GFSC together with the Form REG:

  1. Forms PQ in respect of the controllers, directors and senior managers of the promoter and the fund;
  2. payment of the application fee; and
  3. submission of complete, final and certified copies of the following documents:
    1. prospectus and / or offering documents or equivalent;
    2. the application form, subscription agreement or equivalent;
    3. constitutive documents, that is the memorandum and articles of incorporation, trust deed or limited partnership agreement, as applicable; and
    4. all material agreements entered into by the fund.

On receipt of all of the above documentation, the GFSC will register the fund within three working days. The administrator is encouraged to liaise with the GFSC in advance if it has any concerns about the promoter or the fund to avoid any potential delays in the three working day consent.

Registered may be established as companies, unit trusts or limited partnerships or such other vehicle or entity as may be approved by the GFSC. Each scheme must be established with the objective of spreading risk and the criteria must be specified in the information particulars.

Closed-ended funds (authorised or registered) are not required to appoint a custodian and may appoint a custodian or trustee that is domiciled outside Guernsey.

The designated manager of a registered fund must submit to the GFSC within six months of the end of each financial year the audited annual report and accounts together with any principal documents or other agreements which have been amended. There is also a requirement to file quarterly statistical information.

The RCIS Rules provide that registered funds must not be offered directly to the public in Guernsey but may only be offered to Guernsey regulated entities or offered to the public indirectly by entities appropriately licensed under POI.

Annual Notifications

The designated manager of every registered fund must notify the GFSC in writing annually of any changes in the information contained in the application form submitted for registration of the fund.

The first such notification has to be submitted to the GFSC within 12 months of the date on which a declaration of registration was issued and thereafter at intervals of not more than 12 months. Nil returns are required.

Immediate Notifications

The designated manager of a registered fund is required to give written notice forthwith to the GFSC of any proposed change of designated manager or designated custodian and any proposal to reconstruct, amalgamate, terminate prematurely, wind up or extend the life of the scheme.

Notably, both the RCIS and ACIS Rules only require notification of these matters to the GFSC. They do not explicitly require GFSC consent to the proposed changes. Nonetheless, recent guidance issued by the GFSC has clarified that where the proposed change is to the designated manager (administrator) or custodian (where relevant) GFSC consent to the change is required in order to amend the formal authorisation or registration issued to the fund under POI.

Disclosure

The Prospectus Rules 2008 set out the disclosures that must be made to investors in a registered collective investment scheme. These disclosure requirements differ in some respects, notably:

  • A registered fund constituted as a limited partnership must disclose details of significant beneficial ownership of its general partner.
  • The information particulars of a registered fund must contain a responsibility statement stating that the directors, general partner, manager or trustee (as appropriate) have taken all reasonable care to ensure the accuracy of the information particulars.